Kerwin v. Friedman

• Decision Date: 03 December 1907
• Citation: 127 Mo. App. 519,105 S.W. 1102
• Parties: KERWIN v. FRIEDMAN.
• Court: Missouri Court of Appeals

105 S.W. 1102

127 Mo. A. 519

KERWIN v. FRIEDMAN.

St. Louis Court of Appeals. Missouri.

December 3, 1907.

1. FRAUD—REPRESENTATIONS—FACT OR OPINION.

A representation that defendant's title to certain real estate was good, made to induce plaintiff to make an exchange of property, and relied on, constituted a representation of fact, and not a mere opinion, for the falsity of which plaintiff was entitled to recover damages.

2. SAME—DAMAGES—WEIGHT OF EVIDENCE.

In an action brought in Missouri for fraudulent representations as to the title of land in Tennessee, the court charged that plaintiff's measure of damages was the value of the Tennessee land at the time defendant attempted to exchange it to plaintiff. Two witnesses acquainted with the land testified that it was worth from $7 to $10 per acre at that time, but that within two years after the trade similar lands were worth from $10 to $20 per acre, because a railroad had then been built near the land in controversy and coal had been found on a neighboring tract. Held, that a verdict in favor of plaintiff assessing the value of the land higher than $10 per acre was erroneous, as contrary to the evidence.

3. EVIDENCE — WEIGHT — SUFFICIENCY — EXPERT TESTIMONY.

While jurors may exercise their knowledge and experience in weighing conflicting opinion evidence, and may come to a conclusion not in exact accord with the opinion of any witnesses, it is improper for the jury to transcend the limits of the expert evidence, if there is nothing to discredit either the fairness of the experts or the reasonableness of their testimony, and the nature of the case is such that the experience, knowledge, and common sense of the jurors cannot aid them in the determination of the issue.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by John Kerwin against Benjamin Friedman. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Andrew Johnson, for appellant. H. A. Yonge, for respondent.

GOODE, J.

On May 1, 1905, plaintiffs owned three lots in the city of East St. Louis, Ill., on which there was an incumbrance of $650 and accrued interest. The defendant at that time claimed to own a farm in Scott county, Tenn. A trade was arranged between the parties, by which the plaintiffs acquired defendant's farm and defendant acquired plaintiffs' East St. Louis lots, subject to the mortgage on them. At the same time the defendant lent plaintiffs $250, and took a mortgage back on the Tennessee land to secure the debt. At the time of the trade, defendant had in his possession a deed to the Tennessee land, dated December 16, 1902, executed by one Frank P. George, as grantor, but containing no grantee; the place for the insertion of such name having been left blank. Defendant wanted to convey the land by inserting plaintiffs' names in the George deed, representing that thereby the title would be conveyed. It turned out that neither George nor the defendant had any title to the land in Tennessee, and that George's grantor had had no title; in other words, the title was worthless. When this fact was ascertained, plaintiffs instituted the present action to recover damages, alleging they were induced to make the trade by the false representation of defendant that he held and could make a good title to the Tennessee land, and that this representation was made by defendant fraudulently, he knowing at the time that it was false. In defense, besides a general denial and certain admissions, the defendant pleaded a counterclaim based on the loan he had made plaintiffs at the time of the trade. This loan was evidenced by a negotiable promissory note of date May 2, 1905, payable to Samuel Lowenstein, two years after date, with interest at the rate of 6 per cent. per annum and four interest notes. Lowenstein acted as agent for the defendant and the notes really belonged to the latter. The evidence tended to establish the averments of a false representation fraudulently made by defendant and relied on by plaintiffs, though there was evidence in favor of his innocence. Plaintiffs recovered a verdict of $1,850 and defendant a verdict of $280 on his counterclaim. Thereupon judgment was entered in favor of the plaintiffs for the difference between the two sums, to wit, $1,570.

One point made for a reversal of the judgment is that the testimony shows that what defendant said about the condition of the title to the land was a mere expression of opinion and not a statement of fact. This assignment is based on testimony that defendant said, if the title was not good, he would make it good. His counsel contends that such a statement was no more than an expression of opinion that the title was good in George; but there was testimony that defendant said positively the title was good, and, again, that it was all right. Plaintiffs inquired about the condition of the title before they would enter into the trade, and were assured by the defendant that the title was good. It is true defendant did say in the same conversation that, if it was not, he would make it good; but the evidence tends to show, further, that plaintiffs were inquiring about the title in order to decide whether they would trade or not, and that they did trade in reliance on the representation of defendant that they would get a good title by the delivery of the George...